Special proceedings: absentia trials in Belarus

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Introduction

In 2022, amidst the ongo­ing polit­i­cal repres­sion in Belarus, the coun­try intro­duced the insti­tu­tion of “spe­cial pro­ceed­ings,” which per­mits the author­i­ties to pros­e­cute indi­vid­u­als out­side the coun­try. In oth­er words, the state has autho­rized the pos­si­bil­i­ty of con­duct­ing tri­als in absen­tia (in the defendant’s absence).

It is impor­tant to note that tri­als in absen­tia are not a nov­el con­cept in inter­na­tion­al prac­tice and there is no pre­sump­tion of their ille­gal­i­ty. Nev­er­the­less, even at the stage of adop­tion of the new insti­tu­tion, the state­ments of the author­i­ties made it clear that it was expect­ed to be used in a repres­sive man­ner. In par­tic­u­lar, the chair­man of the Inves­tiga­tive Com­mit­tee, Dzmit­ry Hora, who pro­claimed him­self the mas­ter­mind behind the spe­cial pro­ceed­ings, stat­ed that one of the pur­pos­es of its intro­duc­tion was to par­tial­ly off­set the “dam­age” caused to the coun­try by “calls for sanc­tions, dis­rup­tion of sport­ing events, iso­la­tion of … the coun­try.”[1]

These con­cerns were sub­se­quent­ly val­i­dat­ed in prac­tice. In Sep­tem­ber 2022, the Inves­tiga­tive Com­mit­tee test­ed the new tool in the “Belarus’ Black Book case.” As a result, the defen­dants were sen­tenced in absen­tia to 12 years in prison. Sub­se­quent­ly, the pro­ce­dure above was employed in the cas­es against the heads of the Belaru­sian Sports Sol­i­dar­i­ty Foun­da­tion, Ali­ak­san­dra Herasi­me­nia and Ali­ak­san­dr Apeikin, human rights activist Dzmit­ry Salauiou, as well as politi­cians Svi­at­lana Tsikhanouskaya, Pavel Latush­ka, Vol­ha Kavalko­va and oth­ers.

Since the begin­ning of 2024, this instru­ment of polit­i­cal per­se­cu­tion has also affect­ed jour­nal­ists. Pavel Maryn­ich, the head of Malan­ka Media, was sen­tenced in absen­tia to four years’ impris­on­ment.[2] Pro­ceed­ings were ini­ti­at­ed against the RFL/RL Belarus colum­nist Yury Drakakhrust and jour­nal­ist Han­na Liubako­va (defen­dants in the “Svi­at­lana Tsikhanouskaya’s Ana­lysts case”)[3], as well as free­lance jour­nal­ists Iry­na Char­ni­au­ka and Ali­ak­san­dr Kirke­vich (under Arti­cle 361–4 of the Crim­i­nal Code “Pro­mot­ing extrem­ist activ­i­ties”).[4]

It is cru­cial to acknowl­edge that the polit­i­cal­ly moti­vat­ed nature of the tri­als in absen­tia per­sists to this day. Nev­er­the­less, there is a dis­cernible incli­na­tion to broad­en the scope of those sub­ject­ed to pros­e­cu­tion, which now encom­pass­es indi­vid­u­als beyond the ranks of promi­nent oppo­si­tion fig­ures.[5]

In light of the increas­ing num­ber of cas­es ini­ti­at­ed with­in spe­cial pro­ceed­ings, this report seeks to address key ques­tions about this pro­ce­dure, ana­lyze it through the lens of fair tri­al stan­dards, and pro­vide prac­ti­cal guid­ance to those con­cerned.

[1] https://www.belta.by/society/view/predsedatel-sk-rasskazal-o-proekte-zakona-spetsialnogo-proizvodstva-504347–2022/

[2] https://baj.media/ru/glavu-malanka-media-pavla-marinicha-zaochno-prigovorili-k-4-godam-lishenija-svobody/

[3] https://baj.media/en/criminal-case-of-yury-drakakhrust-hanna-liubakova-and-18-other-defendants-forwarded-to-prosecutor-general/

[4] https://baj.media/en/investigative-committee-launches-special-proceedings-against-freelance-journalists-iryna-charniauka-and-aliaksandr-kirkevich/

[5] Belaru­sian Helsin­ki Com­mit­tee, «Human Rights in Belarus: Key Trends in Pub­lic Pol­i­cy (Jan­u­ary-April ’24) https://trends.belhelcom.org/storage/reviews/May2024/Ln6pcg0TcStHLNDeUimT.pdf

What do “special proceedings” entail?

The Crim­i­nal Pro­ce­dure Code defines spe­cial pro­ceed­ings as “pro­ceed­ings in a crim­i­nal case against a defen­dant who stays out­side the Repub­lic of Belarus and avoids appear­ing before the body con­duct­ing crim­i­nal pro­ceed­ings”.[1]

This pro­ce­dure allows for a tri­al to be held and a ver­dict to be ren­dered in the absence of the defen­dant, where­as the gen­er­al pro­ce­dure does not allow this. This is the pri­ma­ry dis­tin­guish­ing fea­ture of spe­cial pro­ceed­ings; oth­er­wise, they are con­duct­ed in the same man­ner as gen­er­al pro­ceed­ings.[2]

On July 20, 2022, the spe­cial pro­ceed­ings reg­u­la­tions[3] were intro­duced into the Crim­i­nal Pro­ce­dure Code, and the amend­ments entered into force on July 27, 2022. As of June 1, 2024, spe­cial pro­ceed­ings have been ini­ti­at­ed against 105 indi­vid­u­als. Many of them have already received their sen­tences (all of them have been con­vict­ed). The major­i­ty of those pros­e­cut­ed are oppo­si­tion politi­cians, civic activists, or indi­vid­u­als who par­tic­i­pat­ed in the protest move­ment that began in Belarus in 2020.

[1] Arti­cle 6 of the Crim­i­nal Pro­ce­dure Code.

[2] This is exem­pli­fied by the case of the Vias­na Human Rights Cen­ter. Ales Biali­ats­ki, Valiantsin Ste­fanovic, and Uladz­imir Labkovich were in cus­tody dur­ing the tri­al and the case against them was con­sid­ered by the court in the usu­al pro­ce­dure. In the same case, the court con­sid­ered the charges against Dzmit­ry Salauiou, who was out­side Belarus, and con­duct­ed spe­cial pro­ceed­ings against him. This demon­strates that the pro­ce­dure for con­sid­er­ing the case in spe­cial pro­ceed­ings is not dis­tinct from the gen­er­al pro­ce­dure, which allows for the com­bi­na­tion of both in a sin­gle pro­ceed­ing.

[3] Chap­ter 49–3 (Arti­cles 468–25–468–28) and the cor­re­spond­ing amend­ments to cer­tain oth­er Arti­cles.

Who can become a defendant in special proceedings?

The Crim­i­nal Pro­ce­dure Code out­lines sev­er­al con­di­tions for ini­ti­at­ing spe­cial pro­ceed­ings.[1] These include:

1. Spe­cial pro­ceed­ings may only be con­duct­ed against indi­vid­u­als charged with one of the crimes list­ed in Part 2 of Arti­cle 468–25 of the Crim­i­nal Pro­ce­dure Code.[2]  These include crimes against the peace and secu­ri­ty of mankind (war pro­pa­gan­da, geno­cide, etc.), war crimes, ter­ror­ism, mass riots, and some crimes against the state (high trea­son, con­spir­a­cy to seize state pow­er, calls for sanc­tions, etc.)[3], and some oth­er crimes. In the event that the defen­dant is charged with any addi­tion­al offens­es beyond those enu­mer­at­ed, spe­cial pro­ceed­ings may still be ini­ti­at­ed on the basis of such an accu­sa­tion.[4]
2. In order to be eli­gi­ble for con­sid­er­a­tion, the defen­dant must be a cit­i­zen of Belarus and must have reached the age of major­i­ty.
3. The defen­dant is cur­rent­ly out­side the juris­dic­tion of Belarus, evad­ing the author­i­ty of the rel­e­vant law enforce­ment body. The for­eign state where they are locat­ed has either refused to extra­dite them to Belarus for crim­i­nal pros­e­cu­tion or has failed to respond to the extra­di­tion request filed by Belarus for a peri­od of six months.

In gen­er­al, spe­cial pro­ceed­ings are only pos­si­ble if all of the spec­i­fied con­di­tions are met simul­ta­ne­ous­ly. The exis­tence of these con­di­tions must be estab­lished by the pros­e­cut­ing author­i­ty.

Nev­er­the­less, Arti­cle 468–25 of the Crim­i­nal Code stip­u­lates that in instances not encom­passed by Arti­cle 468–25, Part 2 of the Crim­i­nal Pro­ce­dure Code, spe­cial pro­ceed­ings may be ini­ti­at­ed by order of the Pros­e­cu­tor Gen­er­al or by order of the Chair­man of the Inves­tiga­tive Com­mit­tee or the Chair­man of the State Secu­ri­ty Com­mit­tee, with the con­sent of the Pros­e­cu­tor Gen­er­al.

It fol­lows that any indi­vid­ual may poten­tial­ly become a defen­dant in spe­cial pro­ceed­ings, not only an adult cit­i­zen of Belarus, and not only under the spec­i­fied arti­cles of the Crim­i­nal Pro­ce­dure Code. In fact, they may even be pros­e­cut­ed with­out an extra­di­tion request. In prac­tice, cas­es on charges not includ­ed in the list of Part 2 of Arti­cle 468–25 of the Crim­i­nal Pro­ce­dure Code have been repeat­ed­ly con­sid­ered in spe­cial pro­ceed­ings.[5]  This indi­cates that the num­ber of indi­vid­u­als at risk of spe­cial pro­ceed­ings is greater than ini­tial­ly appar­ent.

[1] Part 2 of Arti­cle 468–25 of the Crim­i­nal Pro­ce­dure Code.

[2] Arti­cles 122–137, 289, Part 2 of Arti­cle 290, Arti­cles 290–1‑293, Part 4 of Arti­cle 294, Part 4 of Arti­cle 295, Part 4 of Arti­cle 309, Part 3 of Arti­cle 311, Part 3 of Arti­cle 322, Part 3 of Arti­cle 323, Part 3 of Arti­cle 324, Part 2 of Arti­cle 333, Arti­cles 356–361 of the Crim­i­nal Code of the Repub­lic of Belarus.

[3] It should be not­ed that var­i­ous ways of par­tic­i­pa­tion in «extrem­ist activ­i­ties» or «extrem­ist for­ma­tion» (Arti­cles 361–1–361–5) are not includ­ed in this enu­mer­a­tion.

[4] Sum­ma­ry accu­sa­tions are a com­mon occur­rence. In the first prac­ti­cal appli­ca­tion of spe­cial pro­ceed­ings, the Belarus’ Black Book case,» the defen­dants were charged with two offens­es: under Part 3 of Arti­cle 130 (list­ed) and Arti­cle 203–1 (not list­ed) (https://court.gov.by/ru/93/informaciya/o/date/meste/vremeni/sudebnogo/razbirateljstva/vizove/obvinyaemogo/v/sud/3e0218e8c9be4c40.html). In many instances, the num­ber of non-list­ed offens­es is often greater than the num­ber of list­ed offens­es. For instance, of the 12 offens­es attrib­uted to Valer Tsap­kala, only three are includ­ed in the list (https://court.gov.by/ru/103/informaciya/o/date/meste/vremeni/sudebnogo/razbirateljstva/vizove/obvinyaemogo/v/sud/f7076812e49b4c02.html).

[5] Dzmit­ry Salauiou was charged with two arti­cles — Part 4 of Arti­cle 228 and Part 2 of Arti­cle 342 of the Crim­i­nal Code. Nei­ther of these arti­cles is list­ed in Part 2 of Arti­cle 468–25 of the Crim­i­nal Pro­ce­dure Code (https://www.court.gov.by/ru/93/informaciya/o/date/meste/vremeni/sudebnogo/razbirateljstva/vizove/obvinyaemogo/v/sud/6e1e01b422bf46fa.html). Uladz­imir Astapen­ka was indict­ed on a sin­gle charge: attempt­ed embez­zle­ment by offi­cial mis­con­duct (Part 1 of Arti­cle 14, Part 3 of Arti­cle 210 of the Crim­i­nal Code). This charge is not includ­ed in the list (https://court.gov.by/ru/93/informaciya/o/date/meste/vremeni/sudebnogo/razbirateljstva/vizove/obvinyaemogo/v/sud/5b3cc0331b884c5f.html). Con­cur­rent­ly, two of the three afore­men­tioned arti­cles of the Crim­i­nal Code are not clas­si­fied as «extrem­ist» and per­tain to offens­es against prop­er­ty and pro­ce­dure for busi­ness activ­i­ty.

It should be not­ed that both Dzmit­ry Salauiou and Uladz­imir Astapen­ka are rep­re­sen­ta­tives of civ­il soci­ety, i.e. the intend­ed tar­gets of the spe­cial crim­i­nal pro­ceed­ings. Nev­er­the­less, the list of indi­vid­u­als sub­ject to spe­cial pro­ceed­ings, pub­lished by the Inves­tiga­tive Com­mit­tee, includes cit­i­zens charged with «eco­nom­ic» offens­es who are not pub­licly report­ed as being involved in the protest move­ment (https://t.me/specprosk/40). This indi­cates that spe­cial pro­ceed­ings can be con­duct­ed even in cas­es that are not polit­i­cal­ly moti­vat­ed.

When may special proceedings be initiated?

The com­mence­ment of spe­cial pro­ceed­ings is dis­tinct from the ini­ti­a­tion of a crim­i­nal case. These are two sep­a­rate pro­ce­dur­al steps that can­not coin­cide in time.

A crim­i­nal case is ini­ti­at­ed regard­less of whether the indi­vid­ual is present in the coun­try or not. The case is then sub­ject to a manda­to­ry pre­lim­i­nary inves­ti­ga­tion, which is also pos­si­ble with­out the phys­i­cal pres­ence of the suspect/defendant.

In con­trast to gen­er­al pro­ceed­ings, spe­cial pro­ceed­ings per­mit the case to be tried in the absence of the defen­dant. Con­se­quent­ly, the neces­si­ty for ini­ti­at­ing spe­cial pro­ceed­ings aris­es exclu­sive­ly at the con­clu­sion of the inves­ti­ga­tion. More­over, the com­mence­ment of spe­cial pro­ceed­ings is pre­ced­ed by the fil­ing of an indict­ment (in absen­tia), the iden­ti­fi­ca­tion of the coun­try where the defen­dant is locat­ed, and the send­ing of an extra­di­tion request to that coun­try. The wait­ing peri­od for a response to such a request is six months.

There­fore, a long peri­od may elapse between the ini­ti­a­tion of the case and the com­mence­ment of the spe­cial pro­ceed­ings.[1]  Dur­ing this entire peri­od, indi­vid­u­als may be unaware that they are being inves­ti­gat­ed.

From a pro­ce­dur­al stand­point, the ini­ti­a­tion of spe­cial pro­ceed­ings entails the issuance of a deci­sion by the inves­ti­ga­tor[2] and its sub­mis­sion to the pub­lic pros­e­cu­tor, who has 10 days to pro­vide con­sent or refuse to con­duct spe­cial pro­ceed­ings. In the event of con­sent, the spe­cial case is con­sid­ered to be opened and the rel­e­vant infor­ma­tion is pub­lished on the offi­cial web­site of the Inves­tiga­tive Com­mit­tee[3] and addi­tion­al­ly shared in a spe­cial Telegram chan­nel[4] with­in one busi­ness day.

[1] One exam­ple is the «Coor­di­na­tion Coun­cil case.» On August 19, 2020, Pros­e­cu­tor Gen­er­al Ali­ak­san­dr Koniuk ini­ti­at­ed a crim­i­nal case (https://www.belta.by/society/view/konjuk-po-faktu-sozdanija-koordinatsionnogo-soveta-vozbuzhdeno-ugolovnoe-delo-403511–2020/).The spe­cial pro­ceed­ings against Svi­at­lana Tsikhanouskaya, Pavel Latush­ka, Vol­ha Kavalko­va, Siarhei Dyleus­ki and Maryia Maroz, who left the coun­try com­menced as late as on Octo­ber 20, 2022 (https://t.me/specprosk/17). At the same time, Maryia Kalesnika­va and Mak­sim Znak, who remained in the coun­try and were arrest­ed in Sep­tem­ber 2020, were sen­tenced in Sep­tem­ber 2021.

[2] In accor­dance with the Crim­i­nal Pro­ce­dure Code, a deci­sion may also be issued by the pub­lic pros­e­cu­tor if the crim­i­nal case is exam­ined by them.

[3] https://sk.gov.by/ru/news-ru/view/spetsialnoe-proizvodstvo-11810/

[4] https://t.me/specprosk

The special proceedings procedure

The defen­dant is informed of the ini­ti­a­tion of the spe­cial pro­ceed­ings through a notice issued by the Inves­tiga­tive Com­mit­tee. The pre-tri­al inves­ti­ga­tion author­i­ty is not required to com­mu­ni­cate with the defen­dant in any oth­er man­ner. The defen­dant is assigned[1] a defense lawyer with whom the pre-tri­al inves­ti­ga­tion author­i­ty will con­duct all fur­ther com­mu­ni­ca­tions.

As pre­vi­ous­ly stat­ed, it is rec­om­mend­ed that the prosecutor’s office ini­ti­ate spe­cial pro­ceed­ings at the final stage of the inves­ti­ga­tion. A review of infor­ma­tion from the offi­cial web­site of the Inves­tiga­tive Com­mit­tee[2] indi­cates that the aver­age time between the com­mence­ment of the spe­cial pro­ceed­ings and the con­clu­sion of the pre­lim­i­nary inves­ti­ga­tion is one to two weeks or one to two months. This peri­od is obvi­ous­ly devoid of sig­nif­i­cant inves­tiga­tive actions. It seems prob­a­ble that at the stage of the inves­ti­ga­tion, the par­tic­i­pa­tion of the defense lawyer in the spe­cial pro­ceed­ings is lim­it­ed to famil­iar­iza­tion with the mate­ri­als of the crim­i­nal case.

Sub­se­quent­ly, the case is sub­mit­ted to the pros­e­cu­tor, who for­wards it to the court. Upon receipt of the case, the court is oblig­ed to pub­lish on its offi­cial web­site[3] infor­ma­tion regard­ing the date, time, and loca­tion of the court hear­ing at which the case will be con­sid­ered.

The tri­al itself fol­lows the gen­er­al pro­ce­dure, with the excep­tion that the defen­dant does not par­tic­i­pate. The par­tic­i­pa­tion of the defense lawyer is manda­to­ry.

Once the ver­dict has been reached, the court issues a pub­lic announce­ment, which includes the results of the case, the sen­tence imposed, and any oth­er rel­e­vant infor­ma­tion. In prac­tice, courts pub­lish only the oper­a­tive part of the ver­dict, with­out any addi­tion­al details. The ver­dict is not sent to the defen­dant.

In the event that the sen­tence is appealed by the defen­dant or the defense lawyer or chal­lenged by the pros­e­cu­tor, the appeal is con­duct­ed in accor­dance with the gen­er­al pro­ce­dure. The results of the appeal are also pub­lished on the court’s web­site. Sim­i­lar­ly, the case may be con­sid­ered in a cas­sa­tion or super­vi­so­ry review if an appeal or protest is filed.

Accord­ing­ly, through­out the spe­cial pro­ceed­ings, the defen­dant is only informed of the com­mence­ment of the pro­ceed­ings, the date of the tri­al, the ver­dict, and the appeal deci­sion. Nei­ther the pros­e­cu­tion nor the court pro­vides the defen­dant with any addi­tion­al infor­ma­tion.

[1] A con­tract defense lawyer may also be involved, as dis­cussed below.

[2] https://sk.gov.by/ru/news-ru/view/spetsialnoe-proizvodstvo-11810/

[3] https://www.court.gov.by/ru/1/specialjnoe/proizvodstvo/po/ugolovnim/delam/

Defense in special proceedings

Defending one­self in court

Indi­vid­u­als sub­ject to a spe­cial pro­ce­dure have a con­strained oppor­tu­ni­ty to present a defense in court. This is due to both the norms of the Crim­i­nal Pro­ce­dure Code and the emerg­ing prac­tice of their appli­ca­tion.

The Crim­i­nal Pro­ce­dure Code does not con­tain explic­it pro­vi­sions that whol­ly negate any defendant’s rights with­in spe­cial pro­ceed­ings. For instance, Arti­cle 43 (”Rights and Duties of the Defen­dant”) does not include any excep­tions for this pro­ce­dure. Con­se­quent­ly, the defen­dant is enti­tled to sub­mit peti­tions, state­ments, tes­ti­monies, com­plaints, etc. to the inves­ti­ga­tion and court.

How­ev­er, there is no effec­tive means of exer­cis­ing these rights. Arti­cle 468–26 of the Crim­i­nal Pro­ce­dure Code states that the pro­ce­dure for a spe­cial tri­al and all doc­u­ments nor­mal­ly served on the defen­dant (includ­ing the indict­ment itself) shall be sent to the defense lawyer in a spe­cial tri­al. With regard to the case file, the Crim­i­nal Pro­ce­dure Code express­ly states that in spe­cial pro­ceed­ings it shall be made avail­able for inspec­tion by the defense lawyer, but not by the defen­dant.[1]  It is clear that the defen­dant is unaware of the nature and con­tent of the indict­ment and the case file. Con­se­quent­ly, the defen­dant is unable to present any argu­ments on the case.

More­over, it is rea­son­able to posit that the pros­e­cu­tion and the court will decline to con­sid­er or ignore appeals from the defen­dant in spe­cial pro­ceed­ings on the grounds that they are unable to iden­ti­fy the per­son who sent the appeals.

Defense by a lawyer

The Crim­i­nal Pro­ce­dure Code stip­u­lates that a defense lawyer must be present through­out spe­cial pro­ceed­ings from the moment they com­mence. In the event that the defen­dant does not retain legal coun­sel, a lawyer will be appoint­ed by the ter­ri­to­r­i­al bar asso­ci­a­tion in accor­dance with Arti­cle 46 of the Crim­i­nal Pro­ce­dure Code. As pre­vi­ous­ly stat­ed, the defense lawyer is the recip­i­ent of all pro­ce­dur­al doc­u­ments in the case and is enti­tled to exer­cise all the rights grant­ed to the defense lawyer by the Crim­i­nal Pro­ce­dure Code in the Gen­er­al Rules.

In the­o­ry, the defen­dant may exer­cise their rights through such coun­sel. The defen­dant may request copies of the pro­ce­dur­al doc­u­ments from the defense lawyer and famil­iar­ize them­selves with the case file, which does not ful­ly ensure their rights, but allows them to present a jus­ti­fied posi­tion.

How­ev­er, the exam­ples cur­rent­ly avail­able demon­strate that the defense lawyers appoint­ed to par­tic­i­pate in the case have cho­sen to refrain from con­tact­ing their clients. In some instances, they have even cho­sen to dis­en­gage from their clients and refrain from express­ing any posi­tion on the case. Fur­ther­more, con­tact between the defense lawyer and the client is often exclud­ed due to the lack of clar­i­ty regard­ing which lawyer is involved in the case. This infor­ma­tion is not pub­licly avail­able.

The afore­men­tioned con­duct of lawyers can be attrib­uted to a num­ber of fac­tors. While the Crim­i­nal Pro­ce­dure Code does not explic­it­ly pro­hib­it com­mu­ni­ca­tion between lawyers and defen­dants in spe­cial pro­ceed­ings, a num­ber of instances of arbi­trary inter­pre­ta­tion of the Crim­i­nal Code have led lawyers to express con­cerns that such com­mu­ni­ca­tion (which involves the trans­fer of infor­ma­tion about the case) may be con­sid­ered as dis­clo­sure of infor­ma­tion about the inves­ti­ga­tion or closed court ses­sions, and pos­si­bly as facil­i­ta­tion of extrem­ist activ­i­ties.

It is cur­rent­ly unclear whether there are any cas­es in which a lawyer pro­vides legal rep­re­sen­ta­tion on a con­trac­tu­al basis to a defen­dant. How­ev­er, it seems rea­son­able to posit that the major­i­ty of lawyers would be unlike­ly to enter into such an arrange­ment, giv­en the afore­men­tioned con­sid­er­a­tions.

Thus, in the absence of a nor­ma­tive pro­hi­bi­tion, but based on cur­rent prac­tice, the defen­dant is unable to exer­cise their right to attor­ney.

[1] Part 1 of Arti­cle 257 of the Crim­i­nal Pro­ce­dure Code.

Ways to exercise defendants’ rights in special proceedings

Indi­vid­u­als who are defen­dants in spe­cial pro­ceed­ings cas­es lack infor­ma­tion about the charges against them and the case file. Con­se­quent­ly, they are unable to enter into a con­tract with a lawyer of their choos­ing and have no con­tact with the appoint­ed defense lawyer. Fur­ther­more, the state author­i­ties will ignore their appeals. As a result, any attempt by the defen­dant to influ­ence the ongo­ing pro­ceed­ings is unlike­ly to suc­ceed.

How­ev­er, the defen­dant may under­take a num­ber of actions dur­ing the spe­cial pro­ceed­ings in accor­dance with the crim­i­nal pro­ce­dure. These actions are pri­mar­i­ly designed to cre­ate addi­tion­al argu­ments in favor of the ille­gal­i­ty of the ongo­ing pro­ceed­ings, rather than to direct­ly influ­ence the out­come of the pro­ceed­ings them­selves.

1) From the out­set of the spe­cial pro­ceed­ings, it is pru­dent to demand that the pros­e­cu­tion and sub­se­quent­ly the court fur­nish the indict­ment. Despite the stip­u­la­tion in the Crim­i­nal Pro­ce­dure Code that all pro­ce­dur­al doc­u­ments in spe­cial pro­ceed­ings must be trans­mit­ted to the defense lawyer, this does not pre­clude the trans­mis­sion of doc­u­ments to the defen­dant. Fur­ther­more, it does not negate the individual’s right to be apprised of the charges against them.[1]

2) It is rec­om­mend­ed that an attempt be made to con­tact the coun­sel assigned to the spe­cial case. Ide­al­ly, such con­tact should involve full com­mu­ni­ca­tion with a dis­cus­sion of the mate­ri­als and posi­tion on the case. How­ev­er, giv­en the risks to the defense lawyer, if they make con­tact, it is pos­si­ble to lim­it it to com­mu­ni­cat­ing the posi­tion for pre­sen­ta­tion in court and obtain­ing writ­ten con­fir­ma­tion from them that the body con­duct­ing the crim­i­nal pro­ceed­ings has pro­hib­it­ed the defense lawyer from releas­ing any case file to the defen­dant.

In the event that the name of the appoint­ed defense lawyer is unknown, it may be nec­es­sary to con­tact the inves­ti­gat­ing author­i­ty, the court, and the local bar asso­ci­a­tion to request this infor­ma­tion.

(3) In addi­tion, the defen­dant may attempt to exer­cise oth­er rights dur­ing the tri­al. For instance, the defen­dant may wish to present evi­dence or ini­ti­ate their exam­i­na­tion via vide­olink.[2]  How­ev­er, giv­en the defendant’s lack of infor­ma­tion about the nature of the charges, it is chal­leng­ing and poten­tial­ly detri­men­tal to present any evi­dence (includ­ing tes­ti­mo­ny).

The absence of respons­es to all the above appeals, as well as the refusal to con­sid­er or sat­is­fy them, would per­mit the con­clu­sion that the defen­dant was not ade­quate­ly informed of the charges against them, was denied the oppor­tu­ni­ty to com­mu­ni­cate with their legal coun­sel, and was deprived of the oppor­tu­ni­ty to present evi­dence in their defense. Col­lec­tive­ly, these cir­cum­stances indi­cate a vio­la­tion of the defendant’s right to a fair tri­al.

4) It is a fun­da­men­tal right of the defen­dant to appeal against pro­ce­dur­al deci­sions tak­en against them. This includes, first and fore­most, the order for spe­cial pro­ceed­ings, which ini­ti­ates the pro­ceed­ings, as well as the ver­dict of the court (along with sub­se­quent court deci­sions). An appeal against the spe­cial pro­ceed­ings pro­ce­dure is filed with the Prosecutor’s Office, while an appeal against the ver­dict is filed with the Court of Appeal in the same man­ner as in the gen­er­al pro­ceed­ings (with the excep­tion that the 10-day appeal peri­od com­mences on the day the court pub­lish­es a notice on the results of the pro­ceed­ings).

In such an appeal, it would be pru­dent to refrain from chal­leng­ing the mer­its of the alleged charge or sen­tence. Instead, it would be more effec­tive to argue that the spe­cial pro­ceed­ings them­selves vio­late the right to a defense and to a fair tri­al. While the defen­dants are unlike­ly to have any oth­er argu­ments at the out­set of the spe­cial tri­al, they will be able to raise spe­cif­ic vio­la­tions of their rights on appeal if they have raised the afore­men­tioned appeals dur­ing the tri­al.

[1] Para­graph 1 of part 2 of Arti­cle 43 of the Crim­i­nal Pro­ce­dure Code.

[2] The Crim­i­nal Pro­ce­dure Code does not explic­it­ly pro­vide for the exam­i­na­tion of the defen­dant via vide­olink. Fur­ther­more, the pro­ce­dure in which it must be con­duct­ed (i.e., the sec­re­tary of the court ses­sion must be in the room with the per­son being inter­ro­gat­ed) ren­ders such an exam­i­na­tion imprac­ti­cal in spe­cial pro­ceed­ings.

Con­se­quences of the ver­dict

The sen­tence pro­nounced in the spe­cial pro­ceed­ings and which has entered into force serves as the basis for the arrest of the con­vict­ed per­son and send­ing them to serve the sen­tence. There­fore, it is equiv­a­lent to a sen­tence hand­ed down in the gen­er­al pro­ce­dure. The leg­is­la­tion does not pro­vide for the pos­si­bil­i­ty of review­ing the case with the par­tic­i­pa­tion of the con­vict­ed per­son at their request in the event of their appear­ance (deten­tion).[1]

More­over, the sen­tence serves as the foun­da­tion for locat­ing the con­vict­ed indi­vid­ual and sub­mit­ting new extra­di­tion requests to for­eign coun­tries. It is of para­mount impor­tance for the con­vict­ed indi­vid­ual to be aware of this when vis­it­ing dif­fer­ent for­eign coun­tries.

Addi­tion­al­ly, the con­vict­ed per­son may be expa­tri­at­ed.

The leg­is­la­tion of the Repub­lic of Belarus, as set forth in the Law on Cit­i­zen­ship, pro­vides that the cit­i­zen­ship of the state, includ­ing that obtained at birth, may be revoked in instances where a final judg­ment is ren­dered con­firm­ing the individual’s involve­ment in extrem­ist activ­i­ties or actions that have caused sig­nif­i­cant harm to the inter­ests of the Repub­lic of Belarus, pro­vid­ed that the indi­vid­ual in ques­tion is sit­u­at­ed out­side the bor­ders of the Repub­lic of Belarus.[2]  In this case, the terms “extrem­ist activ­i­ties” and “caus­ing sig­nif­i­cant harm” are defined in accor­dance with the list of crimes out­lined in the explana­to­ry note to Arti­cle 19 of the Law. This list encom­pass­es all the acts enu­mer­at­ed in Arti­cle 468–25 of the Crim­i­nal Pro­ce­dure Code, which are sub­ject to spe­cial pro­ceed­ings. Addi­tion­al­ly, it includes a num­ber of oth­er acts, includ­ing all vari­ants of “extrem­ist activ­i­ties” as defined in the Crim­i­nal Code (Arti­cles 361–1‑361–5).

Con­se­quent­ly, the over­whelm­ing major­i­ty of indi­vid­u­als con­vict­ed in spe­cial pro­ceed­ing cas­es fall into the cat­e­go­ry of those who may lose their cit­i­zen­ship in accor­dance with Part 3 of Arti­cle 19 of the Law on Cit­i­zen­ship of the Repub­lic of Belarus. In light of the fact that this norm was intro­duced into the law on Jan­u­ary 5, 2023, short­ly after the intro­duc­tion of spe­cial pro­ceed­ings in the Crim­i­nal Pro­ce­dure Code, it is pos­si­ble to con­sid­er this norm as anoth­er form of repres­sion against those con­vict­ed in spe­cial pro­ceed­ings.

To date, with­in almost a year since the intro­duc­tion of this norm,[3] there have been no known cas­es of its appli­ca­tion. How­ev­er, due to the fact that there is no nor­ma­tive obsta­cle for it now, its future appli­ca­tion will depend entire­ly on the will of the cur­rent gov­ern­ment and is like­ly to occur.

[1] If the defen­dant appears, is arrest­ed, or extra­dit­ed pri­or to the court enter­ing the delib­er­a­tion room, the spe­cial pro­ceed­ings are effec­tive­ly ter­mi­nat­ed, the case is returned to the pub­lic pros­e­cu­tor, and it is then con­sid­ered by the court with the par­tic­i­pa­tion of the defen­dant (Part 2 of Arti­cle 468–28 of the Crim­i­nal Pro­ce­dure Code).

[2] Part 3 of Arti­cle 19 of the Law on Cit­i­zen­ship of the Repub­lic of Belarus.

[3] The effec­tive date of the pro­vi­sion is July 11, 2023.

Property issues arising from the verdict

In addi­tion to the penal­ty imposed by the court in spe­cial pro­ceed­ings, the sen­tence may include prop­er­ty penal­ties against the con­vict­ed per­son.

1) Harm caused by the crime. The pres­ence of such harm is con­tin­gent upon the cat­e­go­ry of the imput­ed crime and the spe­cif­ic cir­cum­stances of the case. A sig­nif­i­cant num­ber of arti­cles with­in the Crim­i­nal Code are not direct­ly relat­ed to the inflic­tion of harm. It is impor­tant to note that among the arti­cles that could poten­tial­ly lead to spe­cial pro­ceed­ings, there are those for which the courts have already estab­lished a prece­dent for recov­er­ing dam­ages. In par­tic­u­lar, this is Arti­cle 293 of the Crim­i­nal Code (mass riots). With regard to oth­er arti­cles of the Crim­i­nal Code, the pos­si­bil­i­ty of recov­er­ing dam­ages exists in cas­es where an affect­ed per­son has filed a civ­il suit. This is the case, for exam­ple, in cas­es of insult or vio­lence against an offi­cial, as well as eco­nom­ic crimes.[1]

2) Fines. Some arti­cles of the Crim­i­nal Code pro­vide for a fine as the pri­ma­ry or addi­tion­al pun­ish­ment. In such cas­es, the fine is added to oth­er penal­ties imposed by the court. The fine for offens­es sub­ject to spe­cial pro­ceed­ings under Arti­cle 468–25(2) of the Crim­i­nal Pro­ce­dure Code ranges from 500 to 50,000 base val­ues.

3) Court costs. In cer­tain cas­es, costs incurred dur­ing the inves­ti­ga­tion or tri­al (e.g., expert wit­ness fees) may be recov­er­able. In addi­tion, the defen­dant may be assessed a gov­ern­men­tal charge for fil­ing a civ­il action. These amounts are typ­i­cal­ly not sig­nif­i­cant com­pared to oth­er types of for­fei­tures. How­ev­er, they are grounds for ini­ti­at­ing enforce­ment pro­ceed­ings.

4) Spe­cial con­fis­ca­tion. As of July 19, 2019, con­fis­ca­tion as a form of pun­ish­ment has been removed from the Crim­i­nal Code. It should be not­ed that spe­cial con­fis­ca­tion remains a viable option in crim­i­nal pro­ceed­ings. This may include the con­fis­ca­tion of prop­er­ty and pro­ceeds of crime, weapons or instru­ments of crime, and pro­hib­it­ed items. Spe­cial con­fis­ca­tion is also pos­si­ble in cas­es involv­ing “extrem­ist” crimes. For exam­ple, a mobile phone used by the defen­dant to post mes­sages on the Inter­net that the court con­sid­ers to be incite­ment to hatred.

The pres­ence of any of the penal­ties in the sen­tence is the basis for ini­ti­at­ing enforce­ment pro­ceed­ings.[2]  Once the sen­tence has entered into force, the bailiff ini­ti­ates enforce­ment pro­ceed­ings. These pro­ceed­ings allow the bailiff to seize bank accounts, mov­able and immov­able prop­er­ty, shares in legal enti­ties, con­duct and inven­to­ry, and seize prop­er­ty at the place of res­i­dence of the con­vict­ed per­son, etc.[3]

All prop­er­ty sub­ject to reg­is­tra­tion (real estate, auto­mo­biles), as well as the prop­er­ty of spous­es (acquired dur­ing mar­riage), and any prop­er­ty found at the place of res­i­dence (regard­less of whether it is the place of reg­is­tra­tion or actu­al res­i­dence — that is, any dwelling where the execu­tor believes the con­vict­ed per­son could live), are sub­ject to the risk of arrest. It is not uncom­mon for execu­tors to seize prop­er­ty that does not belong to the con­vict­ed per­son but to their rel­a­tives. It is impor­tant to note that these indi­vid­u­als will not be able to exclude this prop­er­ty from the inven­to­ry unless they file a law­suit to release it from seizure.

First­ly, the exe­cu­tion of the sen­tence is car­ried out at the expense of the seized funds, and if these are insuf­fi­cient, at the expense of sell­ing the seized prop­er­ty at auc­tion. As long as the debt remains out­stand­ing, the prop­er­ty will remain under seizure and be offered for sale at auc­tion.

Con­se­quent­ly, a sen­tence ren­dered in spe­cial pro­ceed­ings may result in the con­vict­ed par­ty expe­ri­enc­ing sig­nif­i­cant loss­es of prop­er­ty, even if the prop­er­ty is not com­plete­ly seized.

The Law on Seizure of Prop­er­ty, enact­ed on Jan­u­ary 3, 2023, has prompt­ed con­cerns regard­ing the com­pul­so­ry seizure of prop­er­ty belong­ing to for­eign states, “per­sons from for­eign states,” and “affil­i­at­ed per­sons” for the com­mis­sion of “unfriend­ly actions.”

At this time, it is chal­leng­ing to ascer­tain the poten­tial scope of appli­ca­tion of this law with cer­tain­ty. The law does not define what con­sti­tutes “unfriend­ly acts.” Fur­ther­more, the def­i­n­i­tions of “per­sons from for­eign states” and “affil­i­at­ed per­sons” do not pro­vide a clear answer as to whether Belaru­sian cit­i­zens can be attrib­uted to any of these cat­e­gories. The con­tent of the law indi­cates that it should be applied in response to the poten­tial seizure of prop­er­ty belong­ing to the Repub­lic of Belarus in for­eign coun­tries. It is pos­si­ble that the Belaru­sian state author­i­ties may in the future apply this law to cit­i­zens con­vict­ed in spe­cial pro­ceed­ings (e.g., calls for sanc­tions, an offense that may be the sub­ject of spe­cial pro­ceed­ings, may be con­sid­ered as “unfriend­ly acts”).

[1] In instances where the harm was imput­ed, the ver­dicts may not include a deter­mi­na­tion regard­ing the recov­ery of a mon­e­tary sum. In such cas­es, the ver­dict shall state that the civ­il plain­tiff is rec­og­nized as hav­ing the right to com­pen­sa­tion for harm. The recov­ery of spe­cif­ic amounts of dam­ages shall be addressed in a sep­a­rate tri­al with­in civ­il pro­ceed­ings.

[2] It is stan­dard prac­tice for courts to refrain from report­ing on the recov­ery of mon­e­tary amounts when pub­lish­ing infor­ma­tion on the out­come of a case. Con­se­quent­ly, it is often only pos­si­ble to ascer­tain whether a recov­ery has been made under the judg­ment when enforce­ment pro­ceed­ings are ini­ti­at­ed.

[3] In the event of a spe­cial con­fis­ca­tion ordered by a court of law, spe­cif­ic items are sub­ject to seizure, rather than their mon­e­tary equiv­a­lent (with rare excep­tions). Con­se­quent­ly, the execu­tor’s actions are focused on locat­ing and seiz­ing these items (which are often already seized and held with the crim­i­nal case). Bank accounts, cash, or oth­er forms of prop­er­ty are not sub­ject to seizure in this instance.

Spe­cial pro­ceed­ings’ com­pat­i­bil­i­ty with fair tri­al stan­dards

As a state that has rat­i­fied the Inter­na­tion­al Covenant on Civ­il and Polit­i­cal Rights, Belarus has under­tak­en to pro­vide every per­son accused of a crim­i­nal offense with a num­ber of min­i­mum guar­an­tees enshrined in Arti­cle 14 of the Covenant. These guar­an­tees should be con­sid­ered the start­ing point in answer­ing the ques­tion of whether the “spe­cial pro­ceed­ings” pro­ce­dure com­plies with inter­na­tion­al human rights stan­dards.

• the right to be tried in one’s pres­ence

The first guar­an­tee that deserves atten­tion is the defendant’s right to be tried in their pres­ence.[1] The exis­tence of this guar­an­tee is not unex­pect­ed; pres­ence in the court­room is a pre­req­ui­site for the exer­cise of sev­er­al oth­er rights reg­u­lat­ed by Arti­cle 14. These include the right to defend them­selves in per­son, the right to exam­ine wit­ness­es, the right to access doc­u­ments and oth­er evi­dence, and so forth. Nev­er­the­less, the exis­tence of this guar­an­tee does not sig­ni­fy a pro­hi­bi­tion of in absen­tia tri­als per se. In par­tic­u­lar, the stance of the UN Human Rights Com­mit­tee sug­gests that the defen­dant may waive their right to be present at the tri­al.[2]

Nev­er­the­less, it appears evi­dent that a waiv­er must be pre­ced­ed by the defendant’s aware­ness that crim­i­nal pro­ceed­ings are pend­ing against them. For this rea­son, the state must take all nec­es­sary mea­sures to inform the indi­vid­ual of the ongo­ing pro­ceed­ings and sum­mon them to court prompt­ly.[3] It should be not­ed that the mere fact that an indi­vid­ual is in a for­eign coun­try should not be regard­ed as an inten­tion to avoid jus­tice, nor should it relieve the author­i­ties of the oblig­a­tion to inform.

In accor­dance with the pro­ce­dure for inform­ing about spe­cial pro­ceed­ings as out­lined in Belaru­sian leg­is­la­tion, it can be ascer­tained that the gen­er­al method is to post a notice on the offi­cial web­site of the Inves­tiga­tive Com­mit­tee. It is note­wor­thy that the web­site above is inac­ces­si­ble to users from abroad. Nev­er­the­less, accord­ing to the law, the defen­dant is deemed to have been informed as ear­ly as the day after such pub­li­ca­tion.

Hence, the state relies on a legal pre­sump­tion that an indi­vid­ual is aware of ongo­ing pro­ceed­ings with­out any fac­tu­al evi­dence of that aware­ness. In con­trast, the law does not require addi­tion­al mea­sures to estab­lish actu­al con­tact with the defen­dant. It is, of course, doubt­ful that such a pro­ce­dure can be regard­ed as ful­fill­ing the state’s oblig­a­tion to “take all nec­es­sary steps” to inform in advance.[4]

Fur­ther­more, the fact that spe­cial pro­ceed­ings in Belarus neces­si­tate the manda­to­ry appoint­ment of a defense lawyer can­not be con­sid­ered ade­quate infor­ma­tion. In the case of Male­ki v. Italy, the Human Rights Com­mit­tee observed[5] that the State’s assump­tion that the defen­dant would be informed by his appoint­ed defense lawyer was not suf­fi­cient to con­clude that he was in fact informed. In par­tic­u­lar, the Ital­ian court hear­ing the case should have first ascer­tained that Mr. Male­ki was aware of the crim­i­nal pro­ceed­ings against him. Only then should the court have ini­ti­at­ed pro­ceed­ings in absen­tia. The cur­rent prac­tice of Belaru­sian defense lawyers in spe­cial pro­ceed­ings cas­es indi­cates their reluc­tance to con­tact their clients. Con­se­quent­ly, the like­li­hood of learn­ing about the tri­al from the appoint­ed defense lawyer is even less like­ly.

Nev­er­the­less, despite the ques­tion­able nature of these mea­sures, it is pos­si­ble that a Belaru­sian court may have suf­fi­cient grounds to ascer­tain a waiv­er of the right of per­son­al pres­ence in court in cer­tain cir­cum­stances. To illus­trate, the Euro­pean Court of Human Rights[6] has deter­mined that such a sce­nario may emerge when the defen­dant pub­licly or in writ­ing declares their inten­tion to refrain from par­tic­i­pat­ing in crim­i­nal pro­ceed­ings of which they have become aware.

• the right to be informed of the nature and cause of the charge

It should be point­ed out that the afore­men­tioned noti­fi­ca­tion on the web­site of the Inves­tiga­tive Com­mit­tee can be inter­pret­ed through the lens of anoth­er guar­an­tee enshrined in Arti­cle 14 of the Covenant. Name­ly, the right to be informed in detail of the nature and cause of the crim­i­nal charge.[7]  The aware­ness of this infor­ma­tion is a nec­es­sary pre­req­ui­site for the fur­ther exer­cise of the right to defense dur­ing the tri­al. It should be empha­sized that this guar­an­tee implies aware­ness not only of the offense charged but also of the “alleged gen­er­al facts on which the charge is based.”[8]

How­ev­er, an exam­i­na­tion of the mod­el notices pub­lished by the Inves­tiga­tive Com­mit­tee reveals that they only list the arti­cles of the Crim­i­nal Code (”nature of the charge”), with­out any men­tion of the fac­tu­al cir­cum­stances (”cause of the charge”). More­over, the con­sid­er­able vague­ness of many of the alleged crimes, such as “incit­ing hatred” or “extrem­ist activ­i­ty,” makes it chal­leng­ing to ascer­tain the pre­cise actions that led to the ini­ti­a­tion of crim­i­nal pro­ceed­ings.

• right of defense

As pre­vi­ous­ly stat­ed, spe­cial pro­ceed­ings neces­si­tate the manda­to­ry appoint­ment of a defense lawyer to rep­re­sent the defen­dant in court. This is con­sis­tent with the right of defense, at least on the face of it.[9] Nev­er­the­less, the for­mal appoint­ment of coun­sel to rep­re­sent a client in a legal mat­ter does not guar­an­tee that the appoint­ed coun­sel will reli­ably rep­re­sent the client’s inter­ests.[10] A review of case stud­ies reveals that defense lawyers fre­quent­ly refrain from direct con­tact with their clients, there­by deny­ing them access to case files and the oppor­tu­ni­ty to pro­vide instruc­tions regard­ing their defense.

It is a fun­da­men­tal tenet of the legal pro­fes­sion that inde­pen­dence is pre­sumed. This implies that the state is not liable for a lawyer’s fail­ure to per­form their pro­fes­sion­al duties in good faith. Nev­er­the­less, accord­ing to the posi­tion of the Human Rights Com­mit­tee, where the author­i­ties delib­er­ate­ly pre­vent appoint­ed lawyers from effec­tive­ly car­ry­ing out their func­tions, the respon­si­bil­i­ty of the state is “trig­gered.”[11] In this con­text, it is worth recall­ing the exist­ing prac­tice in Belarus of polit­i­cal per­se­cu­tion of lawyers for their pro­fes­sion­al activ­i­ties. This prac­tice has the effect of caus­ing lawyers to be fear­ful of con­tact­ing clients with­in spe­cial pro­ceed­ings. This is due to the risk of dis­bar­ment as well as their own crim­i­nal lia­bil­i­ty.

• the right to a retri­al

A review of the exten­sive caselaw of the Euro­pean Court of Human Rights on the issue of tri­als in absen­tia reveals that in the major­i­ty of cas­es, the Court finds a vio­la­tion of the right to a fair tri­al due to the lack of a re-exam­i­na­tion of the case (on both fac­tu­al and legal issues).[12] Unfor­tu­nate­ly, this guar­an­tee has not yet been reflect­ed in the caselaw of the Inves­tiga­tive Com­mit­tee, which is not sur­pris­ing giv­en the dis­pro­por­tion­ate­ly low num­ber of cas­es on this issue. Nev­er­the­less, the afore­men­tioned guar­an­tee is wor­thy of par­tic­u­lar scruti­ny (and with a high prob­a­bil­i­ty it may soon become one of the stan­dards out­lined in Arti­cle 14 of the Covenant).

In accor­dance with the posi­tion of the EctHR, once a per­son who has not pre­vi­ous­ly waived their right to be present in court in per­son learns of the ver­dict, they should be able to exer­cise their right to retri­al.[13] In essence, this guar­an­tee serves as a means by which the state can rec­ti­fy the ini­tial ille­gal­i­ty of hold­ing a tri­al in absen­tia with­out estab­lish­ing the defendant’s waiv­er of their right to be present.[14] Where a per­son is deprived of such an oppor­tu­ni­ty, the Court finds a “fla­grant denial of jus­tice,” indi­cat­ing a vio­la­tion of the right to a fair tri­al.[15]

It is cru­cial to reit­er­ate that Chap­ter 49–3 of the Crim­i­nal Pro­ce­dure Code, which address­es spe­cial pro­ceed­ings, lacks the nec­es­sary guar­an­tees for review­ing a ver­dict in the event that the indi­vid­ual con­vict­ed in absen­tia arrives in Belarus. This cre­ates a risk of vio­lat­ing the stan­dard in prac­tice.

[1] Arti­cle 14(3)(d) of the Inter­na­tion­al Covenant on Civ­il and Polit­i­cal Rights https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights 

[2] Gen­er­al Com­ment No. 32, para. 36, CCPR/C/GC/32, August 23, 2007, http://hrlibrary.umn.edu/gencomm/hrcom32.html.

[3] Human Rights Com­mit­tee, Com­mu­ni­ca­tions No. 16/1977, Mbenge v. Zaire, para. 14.1; No. 699/1996,Male­ki v. Italy, para. 9.3.

[4] It is impor­tant to note that the pro­ce­dure for sum­mon­ing the defen­dant to court is sim­i­lar­ly reg­u­lat­ed. This is accom­plished through the issuance of a notice by the court on the offi­cial web­site, which spec­i­fies the date, time, and loca­tion of the court hear­ing.

[5] Human Rights Com­mit­tee, Com­mu­ni­ca­tion No. 699/1996, Male­ki v. Italy, para. 9.4.

[6] Sej­dovic v. Italy, Grand Cham­ber, Judg­ment of 1 March 2006, Appl. No. 56581/00, para. 99.

[7] Arti­cle 14(3)(a) of the Inter­na­tion­al Covenant on Civ­il and Polit­i­cal Rights.

[8] Gen­er­al Com­ment No. 32, para. 31, CCPR/C/GC/32, August 23, 2007, http://hrlibrary.umn.edu/gencomm/hrcom32.html.

[9] Arti­cle 14(3)(d) of the Inter­na­tion­al Covenant on Civ­il and Polit­i­cal Rights reads: «to defend him­self in per­son or through legal assis­tance of his own choos­ing; to be informed, if he does not have legal assis­tance, of this right; and to have legal assis­tance assigned to him, in any case where the inter­ests of jus­tice so require, and with­out pay­ment by him in any such case if he does not have suf­fi­cient means to pay for it».

[10] Gen­er­al Com­ment No. 32, para. 38, CCPR/C/GC/32, August 23, 2007, http://hrlibrary.umn.edu/gencomm/hrcom32.html.

[11] Ibid.

[12] ECtHR, Coloz­za v. Italy, judg­ment of 12 Feb­ru­ary 1985, Appl. No. 9024/80, para.29; Krom­bach v. France, judg­ment of 13 Feb­ru­ary 2001, Appl. No. 29731/96, para. 86, Som­o­gyi v. Italy, judg­ment of 18 May 2004, Appl. No. 67972/01, para 72.

[13] Ibid.

[14] It is impor­tant to note that, in accor­dance with the posi­tion of the Euro­pean Court of Human Rights, this right is pre­served only if the indi­vid­ual has not pre­vi­ous­ly waived their right to be present in court.

[15] Sej­dovic v. Italy, Grand Cham­ber, Judg­ment of 1 March 2006, Appl. No. 56581/00, para. 84.

RECOMMENDATIONS:

Per­sons sub­ject to spe­cial pro­ceed­ings / poten­tial­ly fac­ing them in the future:

1. Take the nec­es­sary steps to for­mal­ize the trans­fer of the own­er­ship of your real estate in Belarus to a third par­ty. To those remain­ing in Belarus, we rec­om­mend estab­lish­ing a glob­al pow­er of attor­ney with a notary. This will allow a third par­ty to man­age your prop­er­ty and rep­re­sent your inter­ests.
2. If your appoint­ed defense lawyer is unable or unwill­ing to com­mu­ni­cate with you, you have the option of request­ing a replace­ment from the Bar Asso­ci­a­tion and/or request­ing that the court dis­qual­i­fy the cur­rent lawyer and appoint a new one to rep­re­sent your inter­ests.
3. To pro­tect your rights and doc­u­ment vio­la­tions of your rights, you may:

• demand famil­iar­iza­tion with the charges and case file,
• appeal against the rul­ing to car­ry out spe­cial pro­ceed­ings, the court ver­dict, and oth­er pro­ce­dur­al deci­sions and actions.

To for­eign coun­tries:

In case of a for­mal request for extra­di­tion of a per­son based on a court deci­sion with­in spe­cial pro­ceed­ings:

• find that it is incom­pat­i­ble with the stan­dards of a fair tri­al as reg­u­lat­ed by Arti­cle 14 of the Inter­na­tion­al Covenant on Civ­il and Polit­i­cal Rights,
• refuse to extra­dite the indi­vid­ual in ques­tion,
• urge the Belaru­sian author­i­ties to imme­di­ate­ly cease the polit­i­cal­ly moti­vat­ed prac­tice of con­duct­ing tri­als in absen­tia.

To inter­na­tion­al orga­ni­za­tions:

Demand that the Belaru­sian author­i­ties com­ply with their inter­na­tion­al human rights oblig­a­tions, and in this regard:

• demand an imme­di­ate end to the polit­i­cal­ly moti­vat­ed prac­tice of spe­cial tri­als; and
• demand har­mo­niza­tion of crim­i­nal pro­ce­dur­al leg­is­la­tion with inter­na­tion­al fair tri­al stan­dards.

To civ­il soci­ety orga­ni­za­tions:

1. Edu­cate for­eign gov­ern­ments about the ille­gal­i­ty of spe­cial pro­ceed­ing tri­als as a pro­ce­dure that vio­lates fair tri­al stan­dards and the prac­tice of using them as an instru­ment of polit­i­cal per­se­cu­tion.
2. Should your orga­ni­za­tion become aware of the deten­tion of an indi­vid­ual abroad who has been con­vict­ed with­in spe­cial pro­ceed­ings with a view to their sub­se­quent extra­di­tion to Belarus, it is imper­a­tive to respond to the sit­u­a­tion in an active man­ner and to assist the indi­vid­ual in pro­tect­ing their rights.